Today in Supreme Court History: May 6, 1776

5/6/1776: Virginia Declaration of Rights by George Mason is published. Thomas Jefferson relied on this document when drafting the Declaration of Independence.

Comments

[JoeFromtheBronx]

U.S. v. Shilling, Commander, et. al., Order in a Pending Case.

The U.S. Supreme Court allows Trump's anti-transgender military ban to go into effect while litigation proceeds.

The stay of the district court's injunction was issued with no reasoning and over the objections of Justices Sotomayor, Kagan, and Jackson. With no reasoning.

An unsurprising but still disturbing allowance of bigotry. To quote the opening of the Virginia Declaration of Rights:

That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

https://www.archives.gov/founding-docs/virginia-declaration-of-rights

[Dan Schiavetta]

United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (decided May 6, 1940): important antitrust case holding that price fixing agreements (here, between oil companies as to tank car prices) are per se illegal under the Sherman Act; famous for its footnote 59, which notes that it is not necessary that there be power to fix prices, nor intent, nor even any overt act (I suppose there still must be “winking”)

Paige v. Banks, 80 U.S. 608 (decided May 6, 1872): I didn’t know that the appointed reporter of decisions (of the Court of Chancery, at the time the highest court in New York) could have a copyright on his manuscripts of the decisions. Here, Mr. Paige (of “Paige’s Chancery Reports”, who served as reporter while moonlighting as a state senator) lost his copyright by failing to give notice of renewal. He died in 1868, and the Court of Chancery was abolished in 1847. Currently the highest court is called the Court of Appeals, and after 30 years of practice in that state I have as much chance of appearing in that court as I do of getting into a time machine and having Mr. Paige transcribe my arguments.

In re Kansas Indians, 72 U.S. 737 (decided May 6, 1867): a state can’t tax land owned by Native Americans on reservations

Mathis v. United States, 391 U.S. 1 (decided May 6, 1968): IRS investigator conducting a “routine tax investigation” must give Miranda warnings if person is in prison (it was for an unrelated offense)

Fok Yung Yo v. United States, 185 U.S. 296 (decided May 6, 1902): courts can’t review decision of customs official to deport Chinese citizen

Sayward v. Denny, 158 U.S. 180 (decided May 6, 1895): Supreme Court doesn’t automatically accept writs of error from state courts; it decides by itself whether a federal question is involved, and if so, it must be central to the case

Schware v. Board of Examiners of New Mexico, 353 U.S. 232 (decided May 6, 1957): Details a bar applicant’s complicated history, including past membership in the Communist Party and being forced to take an alias to avoid anti-Jewish prejudice. The Court holds that New Mexico wrongfully denied his license in violation of the Equal Protection Clause. Interesting opinion.

Konigsberg v. State Bar of California, 353 U.S. 252 (decided May 6, 1957): denial of Equal Protection to deny bar admission due to articles published criticizing the Korean War, past membership in the Communist Party and refusal to answer questions about political affiliations; no showing that he advocated government overthrow (people got denied on much lighter grounds; in the 1990’s the New York Law Journal -- the world’s most boring newspaper, which every N.Y. attorney was required to read every day -- ran a more or less innocuous series of reminiscences by Mordecai Rosenfeld, “A Backhanded View of the Law”, but I remember one with real bite, as to being flunked at a Good Character interview because he did work for a group headed by Eleanor Roosevelt)

Federal Power Comm’n v. Sunray DX Oil Co., 391 U.S. 9 (decided May 6, 1968): The Federal Power Commission (now the Federal Energy Regulatory Commission) must set prices (and issue certificates) allowing producers to sell to pipelines so as to benefit consumers, but at the same time, if it sets prices too high, the producers simply won't produce. This complicated decision by Harlan (which is pre-Chevron) is a course in itself on how the administrative state dealt with the oil industry. It approves the “pipeline proceeding” set up by the FPC and affirms the resulting decision as to pricing and refunds.

Tigner v. Texas, 310 U.S. 141 (decided May 6, 1940): overruling Connolly v. Union Sewer Pipe Co., 1902 (see March 10) and holding that state statute exempting agricultural/livestock producers from criminal antitrust liability (though still could be liable in civil suit) did not violate Equal Protection (due to changed economy requiring cooperation between farmers)

[JoeFromtheBronx]

Multiple Griswold v. Connecticut opinions cited Schware v. Board of Bar Examiners as support for unenumerated rights.

[A Japanese Student]

Many of the early copyright cases involved court reporters. As I understand this, the current situation is:

- United States Reports, prepared by the Reporter of Decisions, is not protected by copyright under Copyright Act of 1976 as federal government work (see 17 USC §105).
- Individual opinions by justices, whether majority or not, is an unprotected government edict. Wheaton v. Peters, 33 U.S. 591 (1834) ("It may be proper to remark that the Court is unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this Court, and that the judges thereof cannot confer on any reporter any such right."); Banks v. Manchester, 128 U.S. 244 (1888) (recognizing that judge-prepared syllabus is not copyrightable)
- If authored by the reporter instead of judges, title page, table of contents, and headnotes, as well as selection and arrangement of public domain works, can create copyright so long as they are "original works of authorship". Callaghan v. Myers, 128 U.S. 617 (1888); see also Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (holding that white pages of telephone books do not meet the threshold of originality)
- Private companies like Westlaw or Lexis can claim copyright to its own case summary or the reporter-added table of contents/headnotes/footnotes. The database could also be copyrightable - though if it's just "reporting all decisions marked as precedential by the judge, chronologically", then Feist seems to bar copyright.

[The Margrave of Azilia]

From the Virginia Declaration of Rights:

"I. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety."

https://oll.libertyfund.org/pages/1776-virginia-bill-of-rights

Did you notice the joker they slipped there? "when they enter into a state of society" - in other words slaves don't have these rights.

It sure would be embarrassing to slavery supporters if some Virginian wrote a broader version of that language, attributing God-given rights to all men without exception.

[A Japanese Student]

Counterfeiting of Official Documents with Seal Case (First Petty Bench, decided May 6, 1976): Public employee authorized to make certificates do not commit counterfeiting when making authentic certificates without following proper procedures; the defendant issued "seal registration certificate" of himself without submitting applications or paying fees

Forcible Obstruction of Business Case (First Petty Bench, decided May 6, 1976): Striking employees found guilty for singing songs and shouting words via megaphone near TV studio (which disturbed live broadcast)

Attempted Murder Case (Second Petty Bench, decided May 6, 1983): The defendant was found guilty of attempted murder for "dropping the victim by force onto a concrete road from the roof of the defendant's house approx. 7.3m above ground" with dolus eventualis (i.e. recklessness). Court rejects the defense's argument that the words "by force" is insufficient because it doesn't say how the defendant dropped the defendant.